Nicholas Malfitano Feb. 24, 2016, 12:40pm


PHILADELPHIA – The U.S. District Court for the Eastern District of Pennsylvania ruled Thursday a firearms instructor is entitled to qualified immunity, in the accidental death of a Pennsylvania state trooper during a safety training session.

Judge Eduardo C. Robreno said Richard Schroeter did not violate decedent Officer David Kedra’s due process rights, in the wake of a firearms safety training session accident where Kedra was mortally wounded. David’s mother, Joan Kedra, brought the lawsuit as the representative of his estate.

On Sept. 30, 2014, David Kedra was ordered to attend a routine firearms safety training session. Schroeter, a veteran police officer and firearms instructor, was the training instructor for the session.

In the course of demonstrating a “trigger reset” technique to the trainees, Schroeter failed to confirm no ammunition was in the handgun he was using. The gun was in fact loaded and when Schroeter pulled the trigger, the gun discharged and the bullet struck Kedra in the abdomen – who died several hours later as a result of his wounds.

According to court records, Schroeter does not dispute those factual allegations and ultimately pled guilty in state court to five counts of reckless endangerment on the basis of that conduct.

Joan Kedra filed a complaint against Schroeter on Sept. 18 last year, under the Fourteenth Amendment to the U.S. Constitution and a state-created danger theory of liability, which the defendant responded to with a motion to dismiss on the basis of qualified immunity.

Robreno said the two attributes which determine qualified immunity are “(1) Whether the official’s conduct violated a constitutional or federal right; and (2) Whether the right at issue was ‘clearly established” – whereas a state-created danger theory needs a state actor whose inherent authority and culpability shocked the conscience, in an act of foreseeable harm against an individual with a relationship to the state.

In order to determine the “difficult” question of whether Schroeter’s conduct shocked the conscience, the parties involved agreed a standard of “deliberate indifference” had to be used.

“Plaintiff’s argument is effectively that the risk was so obvious that it shocks the conscience for him to fail to follow the rules, even if he did not realize in the moment that he was not following them,” Robreno said.

“Defendant, on the other hand, argues that the deliberate indifference standard requires subjective knowledge, such that he could not have acted with deliberate indifference unless he was consciously aware that he had not complied with all safety rules and thus that pulling the trigger carried a deadly risk,” Robreno added.

Robreno said the Court need not – and will not – resolve the difficult constitutional issue of the contours of deliberate indifference and whether Schroeter’s conduct is an example of such indifference.

“It is evident that regardless of the answer, as discussed below, the right at issue is not clearly established by existing precedent,” Robreno said.

Robreno explained neither the Supreme Court nor the U.S. Court of Appeals for the Third Circuit has conclusively stated that the type of conduct at issue here amounts to a violation of constitutional rights.

“In fact, the Third Circuit has explicitly said that it has not yet resolved that question,” Robreno said. “Moreover, there is a circuit split on this issue, with the [U.S. Courts of Appeals for the] Seventh, Ninth, and Tenth Circuits holding that the obviousness of a risk is sufficient to establish deliberate indifference in state-created danger cases, while the Sixth Circuit requires subjective knowledge.”

Robreno explained Kedra’s desired rule of “subjective knowledge of a risk not being required to prove deliberate indifference where the state actor should have known of the risk” may eventually win out in the Third Circuit or Supreme Court, which would then leave future individuals in Schroeter’s situation unable to claim qualified immunity.

“But as the law stands, existing precedent has not placed the statutory or constitutional question beyond debate. Under these circumstances, the violative nature of defendant’s alleged conduct has not been clearly established, and so defendant is necessarily entitled to qualified immunity,” Robreno said.

The plaintiff is represented by Gerald J. Williams and Christopher Markos of Williams Cuker & Berezofsky, in Philadelphia.

The defendant is represented by Kevin R. Bradford and Stephen R. Kovatis of the Office of the Attorney General, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05223

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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